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Jenkins v. Lykes and Barco-Syllabus.

CYPRIAN T. JENKINS, APPELLANT, vs. H. T. LYKES AND N.

BARCO, APPELLEES.

1. Where a sale of timber is made and the contract in writing gives the

purchaser "reasonable time to cut" it, parol testimony tending to show that "reasonable time” meant a stated time spoken of by the parties before signing the contract, is not admissible, as it would change the terms of the contract. What is reasonable time to cut the timber is a question of fact to be determined by

the jury upon evidence on that subject. 2. When the Judge signing a bill of exceptions attests that a general

exception was taken to the whole charge to the jury, and no specific exception was taken to any paragraph, the court on appeal will not notice errors in the charge not specifically excepted to, unless the charge is erroneous as a whole. Parties should point out to the Judge the portions excepted to before the jury leave

the box. 3. A deed of land does not convey to the purchaser timber cut and ly

ing on the ground. 4. A parol sale of standing trees, though void as a sale of an interest

in land, operates as a license to enter and cut the trees, and until revoked such license will estop the seller from suing in trespass or trover. Timber so cut is the personal property of the party

buying and cutting the trees. 5. A parol license to cut trees is revoked by a sale and conveyance of

the land by the licensor to a third person. 6. When a purchaser of land sues one having a license from the former

owner to cut trees for cutting and carrying away timber, he can recover only for such cutting and damage as was done to the realty after the delivery of the deed to the purchaser, and not for the value of timber previously cut but taken away after the

deed. 7. A., acting with the consent of the owners of land, sold to J. the

cedar standing or fallen to be cut on owners' land, and in his own name in writing agreed to "defend him in the same.” Afterwards A. purchased the land. Such purchase did not terminate the license to cut the cedar growing out of the sale thereof, but was rather an affirmance and continuation of it.

Jenkins v. Lykes and Barco-Argument of Counsel.

8. The owner of land, though not in actual possession, may maintain

trespass for an injury thereto against a wrong doer. 'A legal title draws after it a right of possession as against such tres.

passer. Q. Where, in an action of trespass to recover the value of timber cut

and taken from land, the jury have, under erroneous instructions, given a much greater verdict than is warranted by the proofs, and the defendant appears to have suffered injustice thereby, the verdict should be set aside and a new trial granted.

Appeal from the Circuit Court for Hernando county.
The facts of the case are stated in the opinion.
James T. Magbee for Appellant.
John A. Henderson for Appellees.

This was an action of trespass, brought by L. & B. vs. J. for cutting and removing certain red cedar logs of timber from the lands of L. & B. The pleas are: Ist, the general issue; and 2d, that J. had a permit to cut the timber in question off the lands, given by one Atkinson, who subsequently conveyed the land to L. & B., to which plea there was a replication that when said permit was given the lands from which the cedar was cut belonged to the estate of one Ferguson, which estate was in process of settlement; that the wife of Atkinson was one of the heirs of the estate of Ferguson; that he was acting as an agent for the estate, but claimed no authority to sell the timber; and that the permit was given with the understanding between J. and himself that the timber would be removed before the estate sale was had. In January following the sale was had, Atkinson became the purchaser of these lands and sold them to L. & B., giving a full and absolute title thereto. After the purchase, and after notice to J., the appellant cut and removed a quantity of the timber. The jury found for L. & B., and assessed the damages at $250; a motion

Jenkins v. Lykes and Barco—Argument of Counsel.

for a.new trial was overruled and a judgment was entered. This appeal was taken therefrom.

The errors assigned are numerous, and will be treated collectively.

For the appellee the following points are made:

Atkinson's permit to Jenkins to cut timber from the lands of Ferguson, who avowed his want of authority, gave no rights to Jenkins. Russell vs. Myers, 32 Mich., 522.

It would not have protected him from a suit of trespass brought by the executors of Ferguson's estate. It expired, if it was good at any time, with the sale in January. A sale of standing timber is a sale of an interest in real estate. (6 Waite's Actions and Defences, p. 75.) A bona fide purchaser of lands, without notice of the previous sale of timber, has a right to bring trespass for any so cut. Ibid.

The ruling complained of in the first error assigned was the proper ruling.

The testimony of Atkinson as to what was “a reasonable time" in the language of the permit for cutting and removing the cedar trees was properly admitted. It did not alter or vary the terms of a written agreement-it simply explained an indefinite term.

It is true that the charge of the court confounded the terms “evidence" and "testimony," but it did not mislead the jury. The jury simply understood that they were the exclusive judges of the “facts." Their verdict shows that they were not misled. For this or any such error this court will not reverse the judgment if the verdict is sustained by the evidence. (Doggett vs. Willey, 6 Fla., 482; Milton vs. Blackshear, 8 Fla., 161.) The bill of exceptions indicates irregularity as to the manner of taking the exceptions, the recitals are inconsistent; at the end it would seem that the exception was taken then only, although several

Jenkins v. Lykes and Barco-Opinion of Court.

are dovetailed through the record. The charge as a whole was the law of the case, and the verdict was a proper one. It is just such a verdict as would be given upon another trial, and where substantial justice has been done, the verdict ought not to be disturbed.

The CHIEF-Justice delivered the opinion of the court.

Likes and Barco brought an action of trespass against Jenkins, charging him with having, on the 19th October, 1878, and subsequently, entered upon the plaintiffs' premises and cut down a large number of red cedar trees there growing, and carrying away and converting them to his own use. A second count charges him with having unlawfully entered upon plaintiffs' land and carried away a large quantity of red cedar timber.

The defendant pleaded not guilty, and further, defendant pleads that he purchased the red cedar trees and timber, standing or fallen or merchantable, on the land on the eleyenth day of July, 1877, from one M. Atkinson, and paid him for the same, as will appear by the following contract, dated July 11, 1877:

“This is to certify that I have sold to C. T. Jenkins, his heirs or assigns, all the cedar now standing or fallen or merchantable on the land known as the Wise Donation, as lots Nos. I and 2, in Section 5, Township 20, R. 17, S. and East, and will defend him in the same.

“The condition that the said C. T. Jenkins do give the sum of one hundred dollars in a promisory note made payable on or by the ist of January, 1878, the said C. T. Jenkins to have reasonable time to cut the said red cedar. In testimony whereof I have hereunto set my hand and seal.

“M. ATKINSON. [L. S.] “Witness—J. S. MILLER, W. F. GAINES.” This was duly acknowledged. The plaintiffs for replica

Jenkins v. Lykes and Barco-Opinion of Court.

tion to this plea admit that Atkinson did give defendant a permit to cut all the red cedar on said land, and that it was to be cut in a reasonable time, but they say that when the promissory note mentioned was paid on the first of Janiary, 1878, the cedar contract between defendant and Atkinson was closed and the permit or bill of sale expired. Further, that the bill of sale or permit was not recorded before this suit was commenced; and that on the 19th October, 1878, Atkinson sold the land to the plaintiffs by deed duly executed and delivered.

Issue being joined a trial was had and a verdict rendered in favor of plaintiffs for $250 damages. A motion for a new trial was made and denied and judgment entered, from which the defendant appeals.

The plaintiffs introduced as evidence of their title a deed executed by M. Atkinson and wife to them dated October 19th, 1878, acknowledged December 7, 1878.

Mr. Lykes testified that in the last of May, 1879, he notified defendant that plaintiffs had bought the land and the time they had bought it, and forbade his cutting or removing any more cedar. Defendant at that time admitted that he had cut about forty logs since plaintiffs had bought the land. Don't know whether the forty logs had been removed. The average measurement of logs was five to seven cubic feet each, according to witness' experience and observation. Defendant said he had a bill of sale of the timber and considered it his own; he did not say anything about the quantity of cedar in the forty logs. The price of red cedar at that time cut and delivered in market was fifty to sixty cents per cubic foot.

The above was the only conversation with defendant on the subject of the timber cut off the land.

Mr. Barco testified that in the summer of 1879 defendant in conversation told him he had cut cedar on the land and

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